Ernst Francois v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 21-1887 ___________ ERNST FRANCOIS, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA _______________________ On Petition for Review of an Order of the Board of Immigration Appeals BIA No. A041-582-833 U.S. Immigration Judge: Mirlande Tadal ______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) February 7, 2022 Before: GREENAWAY, JR., SCIRICA and COWEN, Circuit Judges. (Filed: July 19, 2022) ________________ OPINION** ________________  The Honorable Robert E. Cowen assumed inactive status on April 1, 2022, after the conference in this case, but before the filing of the opinion. This opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d) and Third Circuit I.O.P. Chapter 12. ** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SCIRICA, Circuit Judge Petitioner Ernst Francois appeals the decision of the Board of Immigration Appeals (the “Board”) denying his motion to reopen proceedings, which had previously resulted in a Final Order of Removal. Because the Board did not abuse its discretion in relying on his prior counsel’s concession of removability, we will deny his motion to reopen. I. Francois is a native and citizen of Haiti, who was admitted to the United States as a lawful permanent resident on March 12, 1988. Francois attended high school in New Jersey, and now has four U.S.-citizen children. Since coming to the United States, Francois has been arrested twelve times and convicted eight times. Most relevant for this appeal are three convictions from 1999 and 2003. On April 8, 1999, Francois was convicted of Possession of a Controlled Dangerous Substance with Intent to Distribute Within 1,000 feet of School Property, N.J. Stat. Ann. § 2C:35-7. He was sentenced to 364 days in jail and three years’ probation. On December 19, 2003, Francois was convicted of Reckless Manslaughter, N.J. Stat Ann. § 2C:11-4(b)(1) and Unlawful Possession of a Weapon (Handgun), N.J. Stat. Ann. § 2C:39-5(b). He was sentenced to eighteen years’ imprisonment for the reckless manslaughter charge, and five years for the unlawful possession of a weapon charge. While Francois was still imprisoned as a result of these convictions, on January 5, 2017, DHS issued him a notice to appear alleging he was removable under 8 U.S.C. § 1227(a)(2)(C) by virtue of the 2003 unlawful possession of a weapon conviction. And on March 10, 2017, ICE issued Francois a charge of 2 inadmissibility under 8 U.S.C. §§ 1227(a)(2)(B)(i) and 1227(a)(2)(A)(iii) in connection with his 1999 controlled substance charge. On October 5, 2017, Francois appeared with counsel before an immigration judge and conceded his 1999 and 2003 convictions rendered him removable under 8 U.S.C. §§ 1227(a)(2)(C) and 1227(a)(2)(B)(i). He only argued he was not deportable under Section 1227(a)(2)(A)(iii), because his 1999 conviction did not constitute an aggravated felony. On March 28, 2017, the Immigration Judge found the 1999 drug conviction constituted an aggravated felony, and thus sustained the charge of removability under Section …

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